Eighty five-year sentence for drug possession overturned

An appeals court has overturned the conviction and lengthy prison sentence given to a Greenville man, whom authorities said sold crack cocaine and ran prostitution and gambling operations from a residence near a local school.

But the Fifth District Court of Appeals of Texas at Dallas did more than just throw out the 85-year sentence for drug possession a Hunt County jury handed down after convicting Allen Lane Whittaker and order a new trial in the case.

In an opinion issued Thursday, the panel ordered Whittaker’s acquittal, claiming the evidence used to convict him was insufficient and the sentence was improperly enhanced.

The office of Hunt County District Attorney F. Duncan Thomas released a statement, indicating there has been no decision made so far regarding whether to seek the opinion of a higher court.

“We certainly agreed with the trial jury’s verdict and disagree with the Court of Appeals,” Thomas said. “We just received the Appellate Court’s decision and intend to consider our options after studying that decision further.”

Whittaker was found guilty in the 196th District Court in April 2007 of possession of between one and four grams of cocaine in a Drug Free Zone. The next day the same jury sentenced Whittaker to 85 years in the Texas Department of Criminal Justice-Institutional Division.

During a formal sentencing hearing three days later, 196th District Court Judge Joe Leonard stacked Whittaker’s sentence on top of a parole violation, meaning Whittaker would not even begin serving the sentence for drug possession until his parole is up in 2030.

Former Assistant District Attorney Carol Day Moss handled the prosecution of the case, based on an investigation by Greenville Police Department Narcotics Officer Wesley Russell. Both won civic awards for their actions in putting Whittaker behind bars.

“There was a high amount of illegal gambling, prostitution and drug transactions going on at that location,” Russell said following Whittaker’s sentencing of the home in the 5000 block of Pickett Street, which was within 1,000 feet of the L. P. Waters Early Childhood Education Center.

The residence had been under investigation by the police department for several months prior to Whittaker’s arrest on July 13, 2006. At the time, Whittaker was already on parole for drug-related offenses committed in Greenville. The residence had no utilities and was used mainly for the distribution of crack cocaine, police officials said.

Neighbors in the surrounding area also helped bring the house to the attention of patrol officers, who initiated numerous traffic stops which resulted in arrests and the recovery of crack cocaine.

The charge Whittaker was facing is typically a third-degree felony, punishable by a maximum sentence upon conviction of from two to 10 years in prison. The potential punishment was enhanced to that of a first-degree felony — or up to life in prison — due to Whittaker’s previous convictions and the fact the offense was in a Drug Free Zone.

However, on appeal, Whittaker’s attorney argued that at the time of the raid on the residence, Whittaker was not present, but was asleep at his mother’s house next door. The cocaine itself was found hidden between two slats of a privacy fence which was easily accessible to the public, the appeals court ruled, meaning that Whittaker was not in proximity to the cocaine and it was not accessible to him at the time.

There was evidence presented at trial that Whittaker had access to and may have resided in the house, raising suspicion that he knew about the cocaine in the back yard.

“However, proof amounting only to strong suspicion or mere probability will not suffice to show appellant had knowledge and control over the cocaine appellant was charged with possessing,” the appeals court ruled in its opinion. “Accordingly, we reverse the trial court’s judgment and render a judgment of acquittal.”